In a daylong hearing, members of the Senate criminal justice and
education committees listened to testimony from more than two dozen
witnesses who said that discipline is being too harshly applied in some
school districts, that it is being unfairly applied and that tens of
thousands of teen-aged students are unwittingly getting criminal records
for minor rules violations.

Under state law enacted in the 1990s,
school districts can have police departments that can write tickets to
students without even witnessing the crime.

Teachers and advocacy
groups testified that what started as a safe-schools program has gotten
out of control. Police organizations complained they are tired of
writing Class C misdemeanor tickets. Courts officials called for
reforms.

Last year alone, more than 953,000 students last year
ended up facing police tickets and fines, kicked out of classes or
school, even arrested for disciplinary violations. More than 120,000 of
them got tickets.

According to a study by the Council of State
Governments that tracked 928,000 Texas students from seventh to 12th
grade from 2000 to 2007, African-Americans were more likely to be
disciplined than other students. Eighty-three percent of
African-American males picked up at least one “discretionary” violation —
the least serious, mostly for minor rules violations —and one fourth of
them received 11 or more.

used to be slapped with police citations and sent before a judge.
Now, teachers and students are trying to address situations on campus
through a program called Suspend Kids to School. The program is aimed at
preventing students teetering on the edge of suspension or expulsion
from landing in alternative education programs.

Gov. Rick Perry’s
Criminal Justice Division picked Waco ISD for the $600,000 pilot
project because it has its own police department, officers were
ticketing students for behavior issues and Waco has close proximity to
Austin. If Perry likes what he sees when a report on the program emerges
from Texas A&M University’s Public Policy Research Institute, state
leaders may reform zero tolerance laws adopted in the mid-1990s.

Under Suspend Kids to School, teachers receive training to better
manage their classrooms, and leaders among students receive training in
peer mediation and campus teen courts. The district also has a Saturday
course to help parents address student behavior.

The early signs have proven positive.

The number of students referred to alternative school has dropped dramatically. The district referred 104 students to Challenge Academy,
the county’s alternative education program, last school year, Waco ISD
spokesman Dale Caffey said. So far this year Waco ISD has referred three
students and estimates that with the reforms the district will refer 22
students total this year.

The number of citations for Class C misdemeanors dropped 42
percent in 2011-12 compared to a year earlier, Perry spokeswoman Lucy
Nashed said.

RELATED: See an extensive new report released this week titled "Breaking Rules, Breaking Budgets" (pdf) on school discipline from Texas Appleseed documenting the costs to eleven Texas school districts. Grits may have more to say about this document after I've had a chance to read it for myself.

MORE: See a related policy brief (pdf) from the Texas Public Policy Foundation.

Tuesday, October 30, 2012

"It takes a village to take down bad forensic science," said A&M statistician Cliff Spiegelman, who "was an ardent opponent of a method of forensic testing called
Comparative Bullet-Lead Analysis (CBLA), which partly through his work
the FBI discredited in 2007. The abandoned technique, which used
chemistry to link bullets from a crime scene to those owned by a
suspect, was first used following the 1963 assassination of President
John F. Kennedy." According to Texas A&M:

"There's always the chance of error," he said. "So, for instance, if a
hair from the defendant is similar to one found at the crime scene, the
issue is, what is the frequency of hairs that are similar in the
general population? Ninety percent? Ten percent? One percent? The
relevance of the evidence is based in part on how common it is. And
that's a statistical issue."

Spiegelman's interest in
statistical forensics was sparked in 2002, when, because of his
expertise in statistics in chemistry, he was appointed to serve on a
National Research Council (NRC) panel to study bullet lead evidence.
During the meetings, he would step out to inject himself in the stomach
with a high dose of interferon as part of a difficult chemotherapy
treatment.

Spiegelman's doctor gave him a 50 percent chance
of living. Instead of quitting the panel to focus on his treatment,
Spiegelman immersed himself in the work with the stark realization that
it could be his last professional act.

The treatment was a success, and while he overcame the threat to his life, his passion for statistical forensics remained.

In 2008, Spiegelman was a co-recipient of a prestigious national award for leading a team that published a paper
finding that forensic evidence used to rule out the presence of a
second shooter in President Kennedy's slaying was fundamentally flawed.
He shared the American Statistical Association's 2008 Statistics in Chemistry Award with Simon Sheather, professor and head of the Texas A&M Department of Statistics, William D. James, a researcher with the Texas A&M Center for Chemical Characterization and Analysis (CCCA), and three other co-authors.

The
paper showed that the bullet fragments involved in the assassination
were not nearly as rare as previously thought, and that the likelihood
that all the fragments didn't come from the same batch of bullets also
was greater than previously thought.

Spiegelman is not a Kennedy assassination buff but "says the Kennedy case is the ultimate example: If the science could be
wrong in a case with intense public interest and with the government
having all the resources it needed, then it certainly could -- and has
often been -- wrong in much more low-profile cases."

The Texas Senate Criminal Justice Committee this morning will hold hearings on two interim charges related to juvenile justice in schools (a joint hearing with the Education Committee) and prescription drug abuse. Go here for the live video feeds at 9:30 and noon, respectively.

Monday, October 29, 2012

The Texas Tribune has a feature on Texas municipal ordinances related to texting while driving, but I confess to wishing the reporter had included in the story data from "The Insurance Institute for Highway Safety [which] says
that 3 of every 4 states that have enacted a ban on texting while
driving have seen crashes actually go up rather than down" (source). Why would crashes increase? "It's hard to pin down exactly why this is the
case, but experts believe it is a result of people trying to avoid
getting caught in states with stiff penalties. Folks trying to keep
their phones out of view will often hold the phone much lower, below the
wheel perhaps, in order to keep it out of view. That means the
driver's eyes are looking down and away from the road."The Trib mentioned that some jurisdictions have extended the ban beyond mere texting. "In September, Amarillo banned the use of all mobile devices while driving."

On Oct. 8, groups of rock-throwing youths broke windows, climbed onto
the roofs of dorms and had to be pepper-sprayed to be brought under
control at the Gainesville State School after they gained access to two
security control panels and unlocked doors at the juvenile facility.

The
two-hour disturbance caused thousands of dollars in damage at the North
Texas lockup but was reported to legislative leaders just three days
ago, weeks after it occurred, sparking new questions about whether
violence and gang-related troubles at Texas’ six youth correctional
centers are even close to being fixed.

On Friday, facing new
legislative pressure to curb such disruptions, officials with the Texas
Juvenile Justice Department confirmed that they are bringing in a team
from the adult prison system to help them beef up security systemwide.
They said they also have hired a new security chief and are considering a
policy change to group older youths together at one lockup to better
control troublemakers.

“Obviously, what happened is not
acceptable,” said Mike Griffiths, the agency’s executive director since
August. “Our responsibility is safety and security. We are changing
things for the better, but we can’t just flip a switch and say it’s
fixed right now.”

Instead, legislative and agency leaders said,
the episode highlights deeper problems: high staff turnover that has put
less seasoned guards on the front lines much sooner than previously;
difficulty retaining and hiring staffers because of talk among
legislative leaders about further downsizing; and an older, more violent
population of incarcerated youths who are harder to control.

TJJD chief Mike Griffiths pinned the troubles on inexperienced, ill-trained staff, noting that "much of the staff has worked there less than a year. He said it is hard
to hire, train and retain employees when the agency faces possible
further downsizing by the Legislature next spring." Grits has long believed staffing and structural issues underlie most of the common complaints about TJJD, particularly episodes like this one. Over the summer I'd written that such "safety issues are really symptoms masking a more fundamental,
underlying disease: A frontline staff neither trained, experienced, nor
numerous enough to manage facilities which were designed along adult
models rather than for the specific needs of youth." None of that changed just because the agency has a new executive director.

Sunday, October 28, 2012

Texas A&M's Public Policy Research Institute has completed and published a two-year study (pdf) analyzing outcomes and costs at Texas' oldest public defender office in Wichita Falls, and the document is filled with fascinating data. Highlights below the jump.

Saturday, October 27, 2012

Exoneree James Woodard, who spent 27 years in prison after being falsely convicted of murdering his girlfriend, will be laid to rest today in Dallas. James was wrongly convicted during the Carter Administration and was one of the Dallas exonerees who was denied DNA testing by former Dallas District Attorney Bill Hill only to be proven innocent when the testing was famously allowed under his successor, Craig Watkins Cases like James' were among those that spurred the Legislature in 2011 to revamp the post-conviction DNA testing statute to limit prosecutors' grounds for objection. His story was featured on 60 Minutes soon after his release; see also a lengthy feature from D Magazine. He joined the board of my employers at the Innocence Project of Texas and for a while was among the most outspoken of Texas' DNA exonerees.

I met James for the first time when he came to Austin to testify on behalf of eyewitness identification legislation in 2009. Of the dozen or so exonerated men who came into town for a lobby day in February of that year, James and I were paired to walk around the capitol making visits advocating the eyewitness ID bill and other reform legislation. He was a good spokesman and seemingly a natural leader among Texas exonerees, but he had already begun to exhibit hints of hidden problems dogging him. He suffered a mild-but-scary seizure at the end of a long day while speaking to a staffer from state Sen. Dan Patrick's office in which he stopped talking, forgot where he was and walked out of the room almost in mid-sentence. (Medication to treat the condition had been left in his hotel room.)

As James Woodard's friends and loved ones remember him today, I thought it appropriate to post the text of a letter dated May 22, 2009 to the Texas Board of Pardons and Paroles. It was drafted by then-Conviction Integrity Unit Chief Mike Ware for Dallas DA Craig Watkins to sign, urging Governor Rick Perry to pardon James on "actual innocence" grounds, which he soon did. The letter declared James Woodard was falsely convicted because "the State had withheld highly relevant, exculpatory evidence at the time
of the trial and thereby presented a completely misleading and
distorted picture of the facts to the jury." Wrote Ware, in an email passing along the letter::

James's story is fascinating. I believe the attached letter is a fair, accurate, and concise synopsis of his story. It is the "official version" if you will.

Of course, James had a life both before his conviction and after his exoneration, but his "story" as reflected in the attached letter is the reason James's life stood for something positive and profound. Most lives don't. James's did.

Here's a link to the letter, which is republished in full below the jump. Rest in peace, James.

Friday, October 26, 2012

In an era of generally declining crime, this data-driven perspective on the sources of increasing incarceration was offered in the Office of Court Administration's latest annual statistical report for FY 2011 (pdf, p. 37):

Two categories of criminal cases increased more than 100 percent over the past 20 years. Felony assault or attempted\murder cases increased 138 percent (from 12,452 to 29,669 cases). Felony and misdemeanor drug offense cases increased 116 percent (from 62,872 to 135,787 cases); however, the number of cases filed each year generally declined from 2007 to 2011.

“Other felonies” increased by 85 percent over the same period (from 26,472 to 48,849 cases).

It's hard to say whether the increase in "felony assault or attempted murder" charges stemmed from greater violence - which runs against other reported trends including DPS data and crime victim surveys - or harsher charging decisions by Texas prosecutors than in years past, which could also explain the data. But the 116% increase in drug cases speaks for itself, as does the 85% increase in "other" crimes, which is code for the hundreds of specialty "enhancements" that have been added to the criminal code over the years, but don't really seem to fit into traditional crime categories. In any event, I thought I'd share those interesting snippets.

Grits wishes I could have attended yesterday's hearing in Houston of the US House Judiciary Committee's Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston Chronicle offered up a good report that began thusly ("Use of drones in community policing 'uncharted territory'," Oct. 25):

Privacy concerns about an airborne armada of government drones
recording the actions of Americans was at the forefront of a
congressional hearing Thursday in Houston, but so far Texas law
enforcement has had limited experience with the new technology.

U.S. Rep. Ted Poe,
R-Humble, chaired the hearing to discuss his proposed law that would
ensure the unmanned aerial vehicles will not be used by government
agents to illegally spy on Americans or let people stalk their
neighbors.

The Texas Department of Public Safety
employed drones from 2008 to 2010, but halted their use due to
operational costs and federal regulations that limited both flight areas
and radio frequencies to control the aircraft, said regional DPS
Commander Duane Steen.

The
Montgomery County Sheriff's Office has still not received government
approval to operate a $300,000 drone that crashed last year into a SWAT
vehicle during a test flight.

"This is new technology, it's
uncharted territory and we … want to make sure we're doing this the
right way and the legal way," said Sheriff's Lt. Melvin Franklin, who explained the drone would be deployed in emergency situations or to search for missing persons.

The Hill also had notable coverage ("Lawmakers mull restrictions on domestic drones," Oct. 25), quoting "Rep. Michael McCaul (R-Texas) [who] emphasized that he believes drones are
essential for killing suspected terrorists overseas and monitoring the
border, and he said drones have a 'real benefit and use' for law
enforcement. But he added that he would support legislation to limit
their use in domestic airspace." Indeed, some of the testimony made even Congressman McCaul nervous. The Hill article closed:

Todd Humphreys, an aerospace engineering professor at the University
of Texas at Austin, predicted that drones in the future could be as
small as insects and able to crawl around a person's house.

Thursday, October 25, 2012

A Dallas News staff editorial titled "Policing the Prosecutors" (Oct. 24) commented favorably on the state bar's lawsuit against Williamson County District Judge and former District Attorney Ken Anderson over alleged "Brady violations," or withholding exculpatory evidence, in the Michael Morton case, previewing the court of inquiry scheduled for December. However, they warned:

state lawmakers can’t wait for the results of these inquiries to
strengthen the laws against prosecutorial misconduct and find more
effective ways to prevent it.

One step advocated by experts,
including the state’s Timothy Cole Advisory Panel on Wrongful
Convictions, is mandatory pretrial reciprocal file sharing between
prosecutors and defense attorneys. Cards on the table, in other words.

Identifying
blatantly malfeasant prosecutors is a tougher issue for lawmakers,
since those who make honest mistakes deserve legal protection, and
honest professionals should not be subject to harassment by criminals
who belong in prison.

But dishonesty and willful violation of
constitutional rights deserve more than a slap on the wrist. The
Legislature should make that clear.

A prominent Fort Worth criminal defense attorney is seeking
additional information on a county serologist, who was disciplined by
the state's top forensic board for professional misconduct but was not
prosecuted.

The serologist, who resigned in March after a
supervisor discovered that he had fabricated test results for two
unopened rape kits, may have "committed a crime" in the lab of the
medical examiner's office, attorney Mark Daniel said.

He
"knowingly falsified forensic laboratory results," Daniel said, and
could be subject to a third-degree felony, such as making a false entry
in a government record.

Tarrant County District Attorney Joe Shannon's office said it hasn't pursued an indictment because no one has asked it to.

"No
defense attorney nor anyone else has presented a proposed criminal case
to this office," spokeswoman Melody McDonald said. "If that is done, we
will be happy to take a look."

The Tarrant County medical
examiner's office reported the incident to the Texas Forensic Science
Commission after the false reports were discovered. The serologist was
immediately suspended and soon resigned.

It was later discovered
that results of several rape kits had been falsified without testing.
Such misconduct is called "drylabbing."

As this was described at the Forensic Science Commission this was basically a case of laziness. The labworker sometimes didn't test rape kits, for example, when the offense report didn't include penetration, drawing conclusions without performing examinations or testing. OTOH, while it's another example of corroboration inflation as it regards the victim account, one wouldn't necessarily see those sort of shortcuts as a practice likely to suborn a false conviction. But you never know, I suppose, until somebody takes a closer look.

Harris County Public Defender Alex Bunin commented in response to Grits' item yesterday on court cost litigation at Texas' 14th Court of Appeals, predicting that "counties (not just Harris) will be hard pressed to recreate a proper
bill of costs for the prisoners who are having their commissary funds
siphoned off for unproven fees. I expect some will file writs since the
court of appeals said the issue is not waived for failure to object in
the trial court."

Interesting. So as I understand that, TDCJ prisoners from Harris County (or other counties that don't produce a "bill of cost") may be able to file habeas corpus writs if they had commissary funds improperly confiscated over un-documented court costs. That would have to be litigated, but as Texas' largest county, we're talking about a LOT of folks. And of course, that commissary money has already been seized and spent.

This affects a lot of folks: 1) the counties (especially judges and district clerks) who may have improperly charged the money, and in many cases are likely still doing so 2) TDCJ who may have seized inmate funds based on insufficient documentation, and 3) TDCJ prisoners out of Harris County, and likely elsewhere, who Bunin believes may be able to file habeas writs to have their commissary funds reinstated, or at least the ones seized for court costs.

If those habeas writs started to roll in and were successful, would the county or the state have to foot the bill for replenishing TDCJ commissary funds? Would the state programs funded themselves be on the hook, e.g., would the Crime Victim Compensation Fund have to pay people back? ¿Quien sabe? The Court of Criminal Appeals conceivably could see hundreds or even thousands of writs on this topic out of Harris County alone on older cases. Stay tuned.

Since we've broached the subject of the death penalty, I should mention this remarkable bit of datum Grits ran across while researching another topic: According to TDCJ's latest annual statistical report (pdf, p. 35), the Lone Star state sent just six new defendants to death row in FY 2011, compared
to 93 people sentenced to life without parole. Last year the number of new death sentences nationally hit an all time low, and surely six in one year must be a modern low for Texas - down 85% from a high of 40 new death sentences in 1996. This news reminds me of this graphic created by the Office of Court Administration and published last year in this Grits post:

Although the implementation of life without parole as the sole option to a death sentence in capital cases - an "enhancement" approved by the Texas Legislature in 2005 with support from the abolitionist movement - is often attributed to reduced Texas death sentences, this graph shows that the trend toward juries rejecting death sentences began long before that legislation was implemented. See a related, recent story from the Waco Tribune Herald about various reasons suggested for the decline in death sentences, pinning much of the responsibility on pragmatic prosecutors choosing to seek death sentences less often, partly because of cost.

Ironically, the Texas execution chamber has been extra busy lately,with more scheduled
between now and Christmas (assuming none of those are stopped by the
courts). The public still supports capital punishment on a symbolic
level, but in most Texas courtrooms it's becoming a practical rarity.

First, Todd Willingham's family, in conjunction with the national Innocence Project, is seeking a posthumous pardon, according to reports from numerous sources (e.g., see reports from the LA Times, the Texas Tribune and the Houston Chronicle). The national Innocence Project has posted documents related to the pardon application on this page. The news comes on the heels of additional coverage out of the LA Times about the review of old arson cases spawned by the Forensic Science Commission's report on the Willingham case. And the new state fire marshal has said he'll use the FSC report to revamp his agency's training and instruction protocols. So whether Willingham ever secures a posthumous pardon - and while Rick Perry is Governor, one tends to doubt the prospects - there's already a significant positive legacy stemming from this possible false execution. It will be interesting to see how the Board of Pardons and Paroles will respond.

Meanwhile, "In May, the Columbia Human Rights Law Review dedicated an
entire issue to the story of Carlos DeLuna, who was executed by the
state of Texas in 1989," reported the Boston Review on Oct. 22. "The article, “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” forthcoming as a book, runs 434 pages long, reads
like Truman Capote’s In Cold Blood, and is groundbreaking in its detail and scope. Its conclusion: Texas murdered an innocent man." I haven't read Los Tocayos Carlos but the summaries I've seen (see prior Grits coverage), including the bullet points highlighted by the Boston Review, make it sound as though the case for his innocence may be more compelling, even, than for Willingham. In the Willingham case, no one could definitively say he didn't do it, merely that the arson testimony convicting him was hokum.. In Carlos DeLuna's case - which was based in part on a sketchy, cross-racial eyewitness identification - basically another man went to his grave saying "I did it." The case for DeLuna's innocence seems to be strong, though I'd want to read, or at least peruse (I won't pledge to review the thing!), the daunting tome that's been published before judging their conclusions.

Wednesday, October 24, 2012

An appellate court has ruled that all court fees in Harris County criminal cases, going back for some indeterminate amount of time, are invalid if the county did not produce a written "bill of cost" documenting their source, as the county apparently, routinely failed to do. Moreover, the issue need not have been preserved at trial for court costs to be appealed. The implications are potentially profound.

See an amicus brief (pdf) and press release from the national ACLU and the Electronic Frontier Foundation about yet another cell-phone tracking device used by law enforcement that any new, restrictive Texas legislation filed next year should try to account for: "Stingray" phone surveillance. Here's a description of the new technology from ComputerWorld's Darlene Storm:

Let’s say you have your cell phone with you, even if you are not talking
or texting, otherwise minding your own business, innocent of being
suspected of any crime . . . but hey your privacy can be invaded as if
you have no Fourth Amendment rights at all. A portable device known as
an IMSI catcher, also known by the generic term stingray,
acts like a fake cell tower and tricks your mobile device into
connecting to it even if you are not on a call. It is used for real time
location tracking; some can pinpoint you within two meters as well as
eavesdrop and capture the contents of your communications.
There’s been a stink about them for a little more than a year, but
three big privacy and civil liberty groups, the ACLU, EPIC and the EFF
have all warned that the secretive devices threaten your rights and that
the invasive technology is unconstitutional.

The ACLU/EFF amicus was filed, wrote Storm, in a case out of Arizona, but it turns out a federal magistrate judge in Texas has been recently been plowing the same earth. "Judge Brian Owsley in Texas pushed back against the warrantless use of stingrays, not once but twice, the Wall Street Journal reported." Indeed, the Wall Street Journal has been all over the Stingray story, which (to my knowledge) they broke about a year ago documenting its warrantless use by the FBI. That earlier WSJ story mentioned that the same manufacturer, "holds trademarks registered between 2002 and 2008 on several
devices, including the StingRay, StingRay II, AmberJack, KingFish,
TriggerFish and LoggerHead." That piqued my interest because the Fort Worth PD not long ago purchased a KingFish system. (Who knows whether other Texas agencies have purchased similar systems or not?)

Anyway, bully for Judge Owsley! Here's a link to his most recent order, and an earlier opinion on the same subject. This week's Wall Street Journal story on his cell-site orders opened, "A judge in Texas is raising questions about whether investigators are
giving courts enough details on technological tools that let them get
data on all the cellphones in an area, including those of innocent
people." The Journal story concluded:

In the Texas cases, Judge Owsley held hearings to determine what
devices were being used. Ultimately, he wrote that stingrays and cell
tower dumps did not fall within the categories of tools that Congress
has said can be used without a warrant.

According to Judge Owsley’s order, the U.S. attorney in the stingray
case said the application was based on a standard model approved by the
Department of Justice and indicated he would give the judge more
examples of law supporting the application. But that memo, Judge Owsley
writes, was never provided to the court.

In the end, wrote Judge Owsley, "cell-site data are protected pursuant to the Fourth Amendment from warrantless searches. Thus, the Government could obtain the cell site data only by establishing probable cause pursuant to Rule 41 of the Federal Rules of Criminal Procedure." Orin Kerr said Owsley's opinion "relies primarily on Magistrate Judge Smith’s decision now on appeal
before the Fifth Circuit that held that cell-site data is protected
under the Fourth Amendment and compelling it therefore requires a
warrant."

Two lessons arise for any privacy legislation going forward next spring at the Texas Lege tht may address these issues: 1) the language must be flexible enough to account for rapidly changing technology, and 2) it should echo Judge Owsley's decision to require a warrant, as opposed to a lesser court order based on reasonable suspicion. That latter, weaker standard is what the government would prefer in the federal cases (see the ACLU/EFF amicus for more detail) and what, as I understand it, Texas law requires now for traditional GPS tracking. Technology is outpacing statutory Fourth Amendment protections at a dizzying clip, and nowhere is that more true than with regards to cell/smart phone data.

These cases, either way, are the beginning of a long discussion that will inevitably end up in SCOTUS' lap. Personally, I'd like to see the legislative branch for once, both state and federal, try to get ahead of the curve rather than wait for judges to write the law after the technology has been in use for years.

The hiring decision will be made by the SPU's board, which somewhat oddly (and unbeknownst to me) is composed of the elected district and county attoreys from every Texas county where the state operates adult or juvenile facilities. Bradley's uniquely positioned to gather votes among that group so he's got a real shot at getting the gig. By the same token, a rebuke for this job would truly be a rebuke by his peers. I hadn't quite fully grokked that when the Texas Tribune first reported he was up for the job.

Dallas County will have to repay $214,000 for overtime paid to Sheriff's deputies for time they didn't work, the Dallas Observer reported.
The seven officers, three of whom were fired and a fourth of whom may
be soon, were being paid through a Texas Department of Transportation
grant fund aimed at
paying police overtime for DWI and seat belt enforcement. Grits had earlier suggested that cuts to that same grant fund were responsible for fewer traffic tickets being written by Texas police officers last year. I didn't realize some officers were just taking the money and not writing tickets anyway.

Do crappy defense lawyers understand they're providing crappy services to their clients? Perhaps not, according tothis academic paper.which argues that, according to the abstract,"defense lawyers will tend to be 'ethically blind' to their
own poor performance. Concluding that lawyers who suffer from ethical
blindness cannot be expected to improve the quality of legal
representation on their own, [the paper] recommends ways to reduce psychological
barriers to competent representation that have proven successful in
other contexts."Grits suspects that's probably true on both sides of the bar.

Austin police chief Art Acevedo accused the Combined Law Enforcement
Association of Texas (CLEAT), the state's largest collection of police
unions, of lying about him
when they said the department created a position for former CLEAT
organizer (and past Austin Police Association President) Mike Sheffield,
who was hired out of retirement for a coveted, senior position ahead of
qualified, active officers. Grits claims no special knowledge beyond
media reports, but I agree with CLEAT the situation at a minimum suffered from bad optics. Whether or not CLEAT
used imprecise language, there's an appearance of special treatment.

As
an aside, though, what a soap opera of internal police union politics on this
one! Mike Sheffield becomes a big-shot as the head of the Austin union,
securing with then-mayor (now state senator) Kirk Watson massive wage
hikes that have come to dominate the city budget and drive expenditures
in other areas into a lengthy series of new debt requests (including
nearly $400 million worth on the November ballot). Then Sheffield goes
to work for APA's umbrella organization, CLEAT, where he was fired under disputed terms over disagreements at the union's highest levels Now he has returned to Austin PD, a friend to management but persona non grata to
the union he once led and the object of public denunciation as a
chief's crony. Adding to that perception, the Chief goes to the media
to defend Sheffield, quite ferociously, attacking his new hire's former
employers in the press and vaguely hinting at (IMO spurious) legal
action. Some of the litigation coming out of Sheffield's employment
dispute with CLEAT should make for awfully interesting reading.

Bexar County Commissioners in their latest budget approved "a $3.5 million renovation at the three-story medical examiner's office and criminal laboratory." Part of that is to expand space for much needed additional ME staff, reported the Express-News. "A dozen investigators who are licensed peace officers inhabit the
first floor, where they each work about 1,100 cases a year. White lab
coats hang in cubicles, decorated with yellow 'CRIME SCENE' scarves and
mouse pads, where investigators receive calls alerting them to deaths. 'They are swamped,” Frost said. “We need more investigators, and the capital improvements will extend their offices.'” They're expanding the evidence vault and creating more space for autopsies and corpses, as well as adding room for growth in crime lab staff. That said, a bigger building may make room for additional analysts but that's a far cry from budgeting for their salaries. So the Bexar expansion won't expand capacity, per se, except for capacity to manage backlogs, unless county commissioners also approve hiring additional analysts and crime-scene investigators.

Meanwhile, in Laredo, reported the Sun, DPS's:

new Laredo crime lab will be 17,143 square
feet. Completion is projected to be in September 2013. Initial staffing
level is to be 10 lab employees with room to increase to 15 employees.

Services
offered in the Laredo lab will be controlled substance analysis,
firearms/tool mark examinations and serology/DNA analysis, all provided
at no cost to law enforcement agencies.

Law enforcement officers
served by the Laredo crime lab will no longer have to submit evidence
for these services to existing labs located 100-150 miles from Laredo.

Congressman Henry Cuellar will also announce the secured funding of $250,000 federal dollars to be used for the new extended DPS Crime lab in equipment, as allocated by Webb County Sheriff Martin Cuellar.

In aggregate, the state recently lost some crime lab capacity when the fee for service lab run by Sam Houston State in Montgomery shut down this summer because of an issue with its lease. DPS crime labs in particular face backlogs so large they've begun to limit testing submissions, and overall capacity doesn't appear to be expanding nearly as fast as demand.

A staff editorial in the Tulsa World cited Medicaid funding for prison hospital services as a compelling argument as to why the state should accept federal money for Medicaid expansion in 2014, urging lawmakers to wait past election season to make up their minds. The editorial closes:

With
more than 25,000 inmates behind bars, and one of the highest per-capita
incarceration rates in the nation, Oklahoma spends a lot on prisons and
has for the past 40 years. Inmates aren't always in the best health.
With its tough 85-percent rule requiring certain offenders to serve most
of their sentence before being eligible for release, inmates are
staying in prison longer and therefore growing old there. The
geriatric-age prison population is growing rapidly and with aging,
coupled with a poor health history, come health problems.

Already, some older, blind and disabled inmates qualify for
Medicaid-funded hospitalization. The change would make the eligibility
almost universal in the prison system.
...

Inmate care is an expensive proposition. If most of that cost could be
shifted to the federal government, Oklahoma tax dollars might be freed
up for other programs such as education and infrastructure. DOC is wise
to take a wait-and-see approach and not to refuse the money quickly like
Texas apparently has done.

Grits was fascinated to see a headline from last week in the LA Times declaring "Two-thirds of most-wanted Mexican drug lords are now in custody, dead" (Oct. 18). However, asked the Times, "have the captures or killings of cartel leaders helped stem the violence
in Mexico or reduce the flow of drugs to the United States? Not
significantly." Instead, "The death or capture of a
cartel leader, analysts repeatedly argue, usually sparks infighting for
succession among lieutenants and thus more bloodshed."

While depressing, this of course is hardly news. In 2007, the federal Government Accountability Office concluded that the strategy of targeting kingpins "does not appear to have significantly reduced drug
trafficking in Mexico, [although] it disrupted the cartels’
organizational structure. However, the disruption caused by the removal
of some of the leadership presented opportunities for other drug
traffickers to take advantage of the changing balance of power, and, in
particular, to gain control of important transit corridors leading to
the United States, such as Nuevo Laredo. Such struggles led to increased
violence throughout Mexico."

Five years and 30,000+ Mexican murders later, we're pursuing the same strategies with worse results than ever.

In Greek mythology, Hercules famously fought the Hydra - a massive snake with many heads - and discovered that when he cut off one head, two would grow back in its place, allowing the beast to inflict even more violence. Hercules eventually won by changing tactics, but drug warriors in the US and Mexico continue to hew to the same, failing strategies while mostly ignoring the white-collar money laundering infrastructure that feeds the snake and allows the "heads" to multiply.

Grits doesn't know whether it's possible to definitively "win" the drug war, but it's certainly possible to ignominiously lose it, which by any metric one cares to examine is what's going on now.

MORE (Oct. 26): From the Houston Chronicle's Baker Institute blog, see a related item on Mexican drug-war "kingpins."

Sunday, October 21, 2012

Criminal defendants declared incompetent by the courts are receiving bills from state mental hospitals asking them to pay for competency restoration services, Eric Dexheimer at the Austin Statesman reported ("State bills some court-detained mental patients for their care," Oct. 20). The woman highlighted in the lede was told she owed an astonishing $97,728. "She is being billed at the rate of $509 a day."

When a defendant is declared incompetent, the court has decided they cannot make decisions for themselves - they can't even plead guilty to the charges unless the court decides they're sane enough to do so. But somehow they're suddenly responsible for inpatient mental health care they didn't ask for and don't want? Shouldn't the bill go to the county that sent the inmate there? After all, isn't the county really the client in such circumstances? They're the ones soliciting and requiring the services, not the defendant.

Heck, there are some incompetent defendants who've been held for 20 years or more; imagine the bills those folks have racked up, if they ever get out.

Saturday, October 20, 2012

There has been much speculation since his primary loss where Williamson County District Attorney John Bradley might land once he leaves office, and the Texas Tribune confirms widespread rumors that he's one of three finalists "to lead the state's Special Prosecution Unit, which prosecutes crimes
committed in state prisons and juvenile detention facilities and is in
charge of civil commitments of sexual predators."

Grits won't say "good luck" because I'm not sure I want him to get the gig. Though it might be interesting to see John Bradley in a job which calls on him to treat convicted felons with the deference prosecutors normally afford victims, one imagines the other candidates likely offer less politicized options. OTOH, there are places he could land where he could do far more damage, just in case his road to Damascus conversion doesn't stick. Heck, I'd half-feared Gov. Perry would name him head of his Criminal Justice Division. So I've got mixed feelings about this prospect, though I'm sure Grits readers have strong opinions on the subject.

The San Antonio press has had a flurry of coverage recently related to the increased number of suicides at the Bexar County Jail, with some laying the blame at the Sheriff's feet and others defending him. Here are some of the key recent pieces of coverage:

The SA Current piece by Michael Barajas is perhaps the best of the lot. A key quote from the Current: "'Our jail is essentially another mental health facility,' Joel Janssen,
president of the Bexar County Deputy Sheriff's Association, the union
representing jail guards, told the Current earlier this month, a symptom
of the state's dismal funding of mental health care. 'We're dealing
with a different class of inmates than when I started 30 years ago, I
can tell you that for sure.'"

The folks at the State Bar must be feeling the heat because they've taken the rare step of recommending discipline against former Williamson County DA, now District Judge Ken Anderson, more than 20 years after the alleged Brady violations in the Michael Morton case. Reported the Texas Tribune's Brandi Grissom:

The State Bar conducted a 10-month investigation after a grievance
was filed against Anderson in the case. The State Bar’s Commission for
Lawyer Discipline wrote in its court filing that Anderson knew of the
evidence and withheld it. The filing also alleges that Anderson made a
false statement to the court when he told the judge he had no evidence
that could be favorable to Morton’s claims of innocence.

His conduct, the State Bar commission wrote, violated five of the state’s Disciplinary Rules of Professional Conduct.

Anderson
is expected to file a response to the lawsuit by Nov. 5. He can choose
between a civil jury trial or a bench trial in which a judge will hear
the case. If Anderson’s conduct is found to constitute professional
misconduct, the judge will impose sanctions, which could include a
public reprimand, probated suspension of his law license, active
suspension of his law license, or disbarment. The judge could also force
Anderson to pay the attorneys' fees of the State Bar commission.

The
Texas Supreme Court has appointed state District Judge Kelly G. Moore
of Terry and Yoakum counties to preside over the case in Williamson
County.

What an unexpected development. Here's a link to the state bar's disciplinary case (pdf) against Anderson. Perhaps the discussion of legislative remedies spurred the state bar into action, or maybe it was the national media. Terry McEachern of the Tulia case is the only other prosecutor sanctioned in recent memory, and he, like Anderson, prosecuted a botched case that ended up on 60 Minutes.

In any event, the court of inquiry regarding Anderson's alleged prosecutorial misconduct has been pushed back until December, and this state bar lawsuit against Judge Anderson only heightens the tension surrounding those unhappy proceedings.

RELATED: See Part One of Texas Monthly Pam Colloff's massive article on the Michael Morton case titled "The Innocent Man." The second half will be published in the December issue.

It's fall, and that means it's the time of year for the US Supreme Court to further strip away the Fourth Amendment to the Bill of Rights as though it was so much bourgeois furniture being destroyed for kindling in the aftermath of an apocalypse. A column in the New York Times points out a pair of Fourth Amendment cases at SCOTUS that bear watching. The op ed by law prof Jeffrey Meyer opened:

The Attorney General's open records division ruled that the state does not have to release security footage of two Brownsville police officers shooting an eighth grader at a middle school . Reported the Brownsville Herald ("Ruling: Security footage should not be released to public," Oct. 17):

Jaime Gonzalez Jr., 15, an eighth-grader at the school, was killed by
two Brownsville police officers in a school hallway after he pointed a
weapon at them and refused to put it down, despite being ordered
repeatedly to do so. The weapon was later determined to be a pellet gun.

John Bussian, the attorney who handles First
Amendment issues for AIM Media Texas LLC, the parent company of The
Brownsville Herald, said the AG’s office issued its ruling on an issue
that was not even addressed in the request made by the DA’s office to
keep the video confidential.

“Unfortunately, the Attorney General found another
excuse not to allow public access to this important material that would
remove any suspicion about what happened. The downside of the ruling is
that whenever a juvenile dies the public will never have access to the
records of the surrounding circumstances,” Bussian said.

In a letter to the state dated Aug. 28, the DA’s
office argued that since no charges were filed in the case, the video
need not be made public.

Despite the fact that the court perhaps unnecessarily relied on arguments, apparently, that the state did not make to come to its decision, from my own understanding of the Public Information Act, Grits reluctantly agrees with the court ruling. That's because I think the court correctly interpreted the current statute, which leaves release of such information to the discretion of the agency in cases where there's no criminal prosecution. But as a long-time user of the Public Information Act, né the Open Records Act, I also understand that before 1996, those records would absolutely have been public information, and I'd like to see the Legislature reverse the changes in 1996-97 spawned by the Texas Supreme Court case Holmes v. Morales, and at a pivotal moment codified the following session into state law. State Rep. Harold Dutton has heroically carried legislation in the past that would perform that good-government mitzvah, but his bill deserves bipartisan sponsorship. Right now, departments pick and choose when they'll release such information based on their own, short-term public relations goals.

A quarter-century ago when I began using it in earnest, the Texas Open Records Act was a mighty tool for justice, allowing the weak to challenge the powerful in ways that today have been diminished or sometimes shut down entirely, particularly when it comes to criminal justice. Back then, when the law was less than two decades old, many of the Open Records Act's original proponents were still at the Texas statehouse to defend it from attack, while then-Attorney General Jim Mattox was building up what, in retrospect, was the most pro-transparency record of any Texas AG, ever. Looking back, though I couldn't have known it at the time, those were the salad days of government transparency in Texas. Today, not so much.

About half of all open-records requests, if we are to judge from the proportion of cases sent to the Attorney General for review, relate to law enforcement and/or criminal cases, so the criminal-justice system is one of the main things the general public actually wants to know about. But as Grits has related before, the courts, the Legislature and a series of lame Attorneys General have conspired to gut the open records act (now annoyingly rebranded the "Public Information Act"), particularly as it regards records related to law enforcement and the criminal justice system. This is an example of a correct court decision interpreting a law that gave too much discretion to law enforcement. But it hasn't always been thus; they're interpreting a section of the Public Information Act, section 552.108, which was rewritten in 1997, just a few short years before the GOP took control of the Texas House and Senate. The Lege could go back to the Mattox-era interpretation - as Rep. Dutton has proposed - if GOP champions existed to take up the mantle for transparency.

There's a lot of new blood coming into the Texas Lege, particularly in the House, where perhaps a third of the members will be freshmen or sophomores, and for the most part their views (read: "voting patterns," not espoused views) on open-records matters remain a mystery. Some may have never seriously considered the subject. In the Senate, long-time Public Information Act custodian Jeff Wentworth, who was generally a barrier to any and all pro-transparency reforms and an ally of law enforcement (and other) interests intent on weakening the act, was defeated in the primary, so that body will need to find a new go-to senator (or at the most, two) on the issue. Whoever that senator might be, their priorities will significantly influence whether that body will take a pro-government or pro-citizen requestor approach. Given that uncertainty, Grits cannot begin to guess how (or whether) the Lege might consider open records issues next session, and if so, whether they'll be pro-government or pro-transparency. I just know the status quo could use some shaking up and government transparency could use some new champions in both legislative chambers. Be on the lookout and let me know in the comments if you hear of any.

PBS's NOVA on Wednesday ran a show titled "Forensics on Trial" (you can watch it online) with the following promo description:

There is a startling gap between the glamorous television world of “CSI” and the gritty reality of the forensic crime lab. With few established scientific standards, no central oversight, and poor regulation of examiners, forensics in the U.S. is in a state of crisis. In "Forensics on Trial", NOVA investigates how modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, can send innocent men and women to prison—and sometimes even to death row. Shockingly, of more than 250 inmates exonerated by DNA testing over the last decade, more than 50 percent of the wrongful convictions stemmed from invalid or improperly handled forensic science. With the help of vivid recreations of actual trials and cases, NOVA will investigate today’s shaky state of crime science as well as cutting-edge solutions that could help investigators put the real criminals behind bars.

Faulty forensics are important and account for a statistically significant proportion of exonerations, but IMO they're a much less common direct cause of false convictions than things like eyewitness error, ineffective defense counsel, and police or prosecutor misconduct. Forensics are usually used as corroborative evidence after an arrest has been made and with a few notable exceptions (e.g.,, DNA and fingerprint matches, DWI evidence) are seldom the sole evidence pointing to a defendant's guilt. Still, it's certainly on the short list and, as the Forensic Science Commission's reviews have shown, there has been a significant amount of error and incompetence to be rooted out in Texas state crime labs. The PBS report doesn't mention Texas, but it should be noted that the Texas FSC represents a pioneering effort at state-level forensic oversight, which has continued even after the cameras stopped rolling in regards to the whole Todd Willingham brouhaha.

True, the FSC's findings have no "teeth" and are sometimes spun rather generously toward the labs. OTOH, labs have been surprisingly compliant with their investigations, and if you agree sunlight is the best disinfectant, then exposing problems in detail serves a significant function. (I've learned a lot.) Plus, assistance by DPS, ASCLD/LAB, the Court of Criminal Appeals' "integrity unit," the state fire marshal, the Innocence Project of Texas, and other entities has given the FSC an extended reach which would otherwise remain beyond their grasp. No one involved could fail to find fault with various aspects of the Texas FSC's processes, particularly when John Bradley was chair, but also before and after. However, a reform bill carried by state senator Juan "Chuy" Hinojosa, which nearly made it through the process last session and is expected to pass next spring, may ameliorate some of the most pressing limitations on the agency's authority.

Texas has focused its attention on issues surrounding forensic (and for that matter, eyewitness) errors more intensely than almost any other state. Before the NAS report was even begun, Texas labs had to be accredited by 2005, the year the FSC was created. So the state deserves credit for beginning to wrestle with these questions well before the National Academy of Sciences' much-publicized 2009 report on flaws in forensic analysis, though that certainly gave the FSC a much-needed jump start. All this to say, despite the Forensic Science Commission's rather odd makeup and some fixable, structural flaws, its detailed investigations provide much more information about what's going on in state and local crime labs than Texas ever had before the commission ramped up its efforts.

We're only at the beginning of an era when the scientific method is being applied to historically accepted forensic products, and the results so far have been a mixed bag. But at least Texas has created a mechanism capable of documenting crime-lab problems about which, a decade ago, we perhaps wouldn't even be aware. The NOVA special is right that we're in an era when forensic sciences are "on trial." But to the extent forensics is science, it should be constantly put "on trial," and I'm gratified that Texas has created a mechanism, however flawed, for doing so.

Thursday, October 18, 2012

Texas could move even further down the path toward state-level de-incarceration and county control of juvenile justice, if a deal being discussed behind the scenes comes to fruition. Reported the Austin Statesman's Mike Ward ("Counties push to bypass state youth lockups," Oct. 17):

Counties in Texas might soon be allowed to incarcerate all their
teenage lawbreakers locally rather than send them to state-run lockups
that have been plagued by violence, high recidivism rates and gang
activity in recent years, officials confirmed Wednesday.

Travis
County is among several counties that are pushing for the change in
state law that some officials predict could save taxpayers millions of
dollars — and have better success at thwarting criminal behavior in
youths.

Such a change would mark Texas’ latest move away from
state-run juvenile corrections, a trend that started five years ago when
a sex-abuse scandal in the state’s juvenile-justice agency triggered
reforms that have resulted in the closure of half the state-run lockups.
The six that remain house less than 1,200 youths — about the size of an
average city high school.

Ward refers to a "plan that is quietly being floated by Travis and other counties’ officials at the Capitol," which:

would require a change in state law, giving
counties the authority to commit a youth to their custody, rather than
to a state lockup. In addition, they said there are issues that must be
resolved, including whether county lockups would have to meet state
standards, who would handle transfers to adult prisons for youth
offenders who are too violent to keep in county lockups and how much the
state would pay counties for incarcerating youths.

The cost of
incarcerating a youth in a state-run lockup runs just over $400 a day;
the cost in counties is much less — about $118 a day in Travis County.

It sounds like a lot of the key opinion leaders are generally on board, though that's a long way from passing a functional reform bill.

Wednesday, October 17, 2012

The following press release received today announced the latest Texas Criminal Justice Coalition public policy report, this one detailing community-based resources available at the county level - including county-by-county fact sheets. See coverage from the Texas Tribune and the full press release below the jump:

Driving back to Austin from Dallas last week I saw a couple of billboards promoting the website "LaredoIsSafe.com," purporting to distinguish "hype vs. truth," as sort of a counterweight to the PR campaign being undertaken by Agriculture Commissioner Todd Staples with the opposite theme. Among other indicators, Laredoissafe.com points to the city's uniform crime reporting indicators, published in their police department's annual report, which show an across the board drop of 16% in reported crime in 2011. They also showed a 21.6% decline in traffic stops in 2011, which coincides with a statewide drop in traffic tickets that Grits doesn't yet fully understand. (E.g., Houston and Fort Worth reported 2011 reductions in traffic citations comparable to that in Laredo.) In any event, it's remarkable that the city of Laredo (which is who sponsored the billboards and site) felt the need to combat the negative image that politicized demagoguery has foisted upon the town.

The flip side, of course, is that for most Texans who didn't have business there, the main reason to go to Laredo was always to get to Nuevo Laredo or beyond. Similarly, Del Rio's a nice little town, with its picturesque, hundred-year old canals filled with water from the state's largest natural spring (pumping several times the amount of water as Barton Springs in Austin, though regrettably located on what is now a golf course). But for me it's mostly just the place one ate lunch and parked the car before walking to much-larger Acuña on the other side of the river, where for many years, until the border-town fighting started, my wife and I would go to buy Christmas presents. So as long as cities on the Mexican side are unsafe, tourism in Texas border towns will inevitably take a hit, for the same reasons that I'm not spending as many tourism dollars in Texas border towns as I did perhaps ten years ago (even if exchange rates and airline fares have conspired with my own career choices to send me traveling more frequently in the Mexican interior of late than overseas).

Still, the city's ad campaign makes an important point that's lost in all the border security hype: Most "spillover" along the border isn't headed south to north but north to south. The Texas side of the border has seldom seen actual spillover violence, and certainly nothing remotely on the levels witnessed across the river in Mexico. Statistically, in fact, Texas border towns are among the safest in the nation. Meanwhile Texas prison gang members may be responsible for thousands of Mexican-side murders.

So yes, "Laredo is safe." But to the extent its fate is intertwined with Mexico's, regrettably that isn't the only consideration.

Tuesday, October 16, 2012

TDCJ's Clements and Neal units, reported the Amarillo Globe News ("'An intervention' on water usage in Amarillo," Oct. 14) are together the second largest water customer in Amarillo, soaking up 44% more water than the city of Amarillo itself (395 million gallons and 275 million gallons last year, respectively). Grits has written before about prisons as water hogs. While TDCJ is the second biggest water customer in Amarillo, it's the largest in Abilene. In South Texas, the Connally unit had to begin rationing water and closed two wings because of excessive staffing vacancies and a chronic municipal water shortage.

Prisons' vast water use in mainly rural areas is a largely unexplored aspect of mass incarceration, but one wonders if, in the coming years, Texas' water wars might ever contribute to de-incarceration pressures? As water problems which are today viewed as annoyances become more acute, towns like Amarillo may begin to look at who's using up most of their water and decide whether or not the juice is worth the squeeze.

Police often use social media sites like Facebook as an investigative tool to learn more about criminals and their crimes.

But
as one recent Mesquite police case illustrates, sometimes the same
tactics can be used to seek revenge against investigators.

Melissa Walthall, 30, of Mesquite was arrested Monday by Mesquite police
and charged with retaliation, a felony, for posting a photo of one of
the department’s undercover officers on her Facebook page.

Notably, reported Krause, "Law enforcement associations say the only way to truly be anonymous is
not to have social media accounts. But many police departments are
behind in developing social media policies and guidelines for their
officers." Carlos Miller at Photography is Not a Crime argues argues that outing an undercover officer isn't necessarily retaliation under the law.

A Garland police officer is on restricted duty after authorities say
he fired as many as 41 shots at an apparently unarmed man last month,
killing him.

Garland police also said Tuesday that dash-cam video
revealed that Officer Patrick Tuter crashed his squad car into a truck
driven by the suspect, Michael Vincent Allen, before the shooting
started. Initial reports had said Allen had hit Tuter’s car, prompting
the officer to open fire.

According to the News, next door neighbor Mitchell "Wallace took cellphone pictures and video after the shooting stopped,
but he said Mesquite police confiscated the phone and deleted the video
and pictures. The phone was returned four days later, he said." Deleting the video (read: evidence) may or may not be illegal, but it's certainly bad form.

The good folks at the Austin Peaceful Streets Project have been pushing for the City of Austin to enact a more forceful policy - perhaps modeled after the one adopted (pdf) by the Washington D.C. Metropolitan Police - to protect the rights of public photographers in just these situations. That sort of policy would have also protected Mr. Wallace, providing guidance to both citizens and officers about what's allowed.

If local governments are going to keep arresting photographers or seizing their cameras, given the rise of cell phone cameras and other such common devices, perhaps it's time to proactively enshrine the right of the citizenry to photograph police into state law, adopting key provisions from the Washington D.C. policy and federal best practices to restrict when police can seize cell phones and cameras, much less delete evidence taken at an alleged crime scene, as reportedly happened in Garland. It'd be great if local PDs could be relied upon to enact and enforce reasonable local policies on this question, but so far, that's not what's happening.

The title of this post is a headline to a piece which ran today in the Texas Tribune revealing unintended consequences to the Legislature's decision to charge offenders who used healthcare services $100 out of their commissary account. The article opens with an anecdote of a prisoner who failed to access treatment because of the fee until his illness progressed to pneumonia, but also provides this discussion of the underlying legislation which created the situation:

As a result of HB26,
which took effect last year, TDCJ prisoners who seek medical care now
pay a fee of $100 once a year, whether they see a doctor once or
multiple times. But if they don't see a doctor at all, they can avoid
the fee altogether. Critics of the new law, though, say the fee has had
unintended consequences — including situations where inmates are
refusing treatment and a complicated administrative process for inmates
who say they have been charged incorrectly. The fee, these critics say,
hasn't even met financial expectations.

Lawmakers who supported the policy change say the goal is to take the
burden off taxpayers to pay for inmate health care. “I believe it was
the right thing to do at the time,” said state Rep. Jerry Madden, R-Plano, who wrote the bill. "I still think it's a reasonable thing to do."

The fee has not produced the predicted financial results. The $100 dollar copay was expected to
raise $5.7 million in 2012. According to TDCJ, it generated about $2.5
million, while the $3 copay had generated roughly $500,000 each year.

“Quite frankly, it doesn’t make much of a difference,” said Dr. Owen
Murray, vice president for correctional managed care at the University of Texas Medical Branch,
which along with Texas Tech University Health Sciences Center has
administered health care to all TDCJ inmates since 1993. “The financial
expectations for the program have not been met.”

TDCJ spokesman Jason Clark said that the medical fee is charged to the offender's commissary, or trust
fund, account. “If there is not enough money in the trust fund account,
the law requires that 50 percent of each deposit to the offender’s
trust fund account must be applied to the amount owed until the total
amount is paid,” he said. That means when inmates get commissary money
from their families, half is taken out if they’ve seen a doctor and
haven't paid the entire fee.

There are exceptions. Inmates with
less than $5 in their commissary account are not charged. The fee does
not apply to emergencies, to follow-up services on an initial treatment
or to chronic care.

Remarkably, the fee hasn't even reduced the overall number of medical service calls, as legislators had hoped; it just deferred the first one. Dr. Owen "Murray said that initially the number of inmates requesting care dropped
drastically, but eventually it grew back to prior rates as patients
learned the system. Once they have paid the yearly fee, they 'start to
put in more sick-call requests,' he said."

Let's face it: This grand microeconomics experiment has been a flop and the state prison budget cannot be balanced on the backs of inmate families. Any marginal extra income from higher copays is gobbled up by extra costs from untreated care when inmates delay visiting a doctor to avoid the $100 expense, which anyway is a pittance compared to per-inmate healthcare costs. To that extent, this post could have been titled, "On the limits of squeezing blood from a stone." This scheme was borne because the Lege wouldn't adequately fund prison healthcare costs in the state budget, shorting that line item by tens of millions. So instead of increase that line item, raise taxes, etc., the Lege short-changed prison-health care and passed this new commissary-based $100 fee hoping to reduce demand by boosting price. For the heaviest healthcare users, though, that's still a low sum, and for the others, it may defer access to healthcare that could prevent more serious illness. So demand did not go down, it only shifted somewhat from cheaper preventive care to more expensive care after patients are very sick. Because after all, TDCJ's constitutional responsibility to provide care doesn't go away just because the Legislature enacted this fee.

If sequestration goes into effect next year, which is considered
likely, all domestic federal discretionary spending--including for
criminal justice purposes--will be cut by 8.2 percent at first. Further
reductions are required through fiscal year 2021.

Advocates for federal spending on criminal justice and other domestic
issues are trying to convince members of Congress to take a "balanced"
approach that does not require continued, large across-the-board cuts in
federal aid.

Many argue that while the huge federal deficit makes some spending
reductions inevitable, more attention should be given to "entitlements"
like Medicare and Social Security payments.

Depending on what's meant by juvenile grants, that could be a big deal. Here's a link to the most recent quarter's worth of federal Byrne grants issued in Texas by the US Justice Department.

In 2010, Nagy's pretrial services staff screened more than 40,000
defendants in the Travis County jail, to determine who might be eligible
for a personal bond. Only a discrete class of defendants is
automatically ineligible – including those charged with capital crimes
and those who've violated parole or forfeited a previous bond. In all,
roughly 32,000 of those screened made it to a full-fledged pretrial
investigation, for which staff collects references, conducts a
background check, and considers a variety of issues – including
employment status and family support – that might suggest whether a
defendant will show for court or be rearrested. The agency then makes a
recommendation to the courts about whether the person should be granted a
personal bond. In 2010, 63% of defendants released pretrial were
released on personal bond. That same year the agency posted a court
failure-to-appear rate of 13% and a rearrest rate of 14%, according to
annual reports the agency is required to file. In contrast, that same
year defendants released on commercial bond failed to appear in court
20% of the time, according to information collected by Travis County.

Nagy believes the FTA and rearrest numbers will shrink with the
introduction in November of a research-based risk-assessment tool,
designed and validated specifically for Travis County defendants, in
order to help her staff more objectively determine a person's likelihood
of success if released on personal bond. "That's really consistent with
all the research on decision-making. ... These tools do significantly
better than just the person" making a decision, Nagy says. "Making a
pretrial decision without risk assessment is like playing golf in the
fog."

Attorneys for bail bond companies, who were quoted extensively in the story, claimed their failure to appear (FTA) rate was lower - more like 2% compared to the county's 13%. By contrast, Smith reported, Travis County calculated that clients of commercial bail companies posted failure to appear rates of 20% and 17% in 2010 and 2011, respectively.

From a mathematical perspective, it makes sense to me that, used widely along with a validated risk assessment, personal bonds would have lower FTA rates. In general, most people will just show up for court, especially if pretrial services supports that tendency with a multimedia program of reminders (phone calls, texts, emails, snail mail, etc.). If the risk assessment can accurately identify folks who are likely to show up anyway, then the bail-bond industry's client pool would consist of people judged by pretrial services to pose a higher risk of flight. Thus, if used widely, you'd expect the FTA rate for bail bond clients - almost by definition, if the risk-assessment instrument is doing its job - to be higher than the lower-risk folks judged eligible for release on their own recognizance. But until Travis County began issuing personal bonds for the majority of defendants (63% in 2010) released pretrial, creating a large enough pool to make a valid comparison, one could only speculate: Someone had to test the theory and document the results. Now Nagy has demonstrated it can work.

One also can see outlines of potential legislative reforms suggested in the story, at a minimum
requiring bail-bond agents to produce reporting and documentation on
their clients' outcomes comparable to the records published by pretrial
services. I've been around these blocks for several years and agree with Nagy that
the lack of reporting on the commercial bail side often frustrates any
serious mathematical analysis of county-level outcomes.
This is a long-standing issue affecting many counties, and generating
public data sufficient to make apples to apples comparisons between bail-bond companies and pretrial services could be an important first step
toward shifting the debate from the sort of animated hype and misinformation put out by the bail-bond attorneys quoted in the story to a discussion animated by data and outcomes. Hype aside, what works? Is there data to prove it? Nagy's suggestion to require bail agents to submit reporting comparable to reporting requirements for pretrial services is to me a stroke of genius: That would resolve a lot of the confusion surrounding the elusive apples to apples outcomes for pretrial services and commercial bail. ("'Data data, data,' he cried impatiently, 'I cannot make bricks without clay.'")

Excellent reporting from Jordan Smith (read the whole thing), and I hope Dr. Nagy succeeds in making Travis' expanded use of personal bonds a model for its sister jurisdictions around the state. Folks in other Texas counties should pay heed: When administered through a validated risk assessment, personal bonds don't reduce the likelihood defendants appear in court - which after all is the purpose of bail - and save huge sums in reduced incarceration costs at county jails.

RELATED: See the Justice Policy Institute's latest series of reports on the U.S. bail system.

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"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Conroe

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

- Texas Public Policy Foundation

"Nobody does it better or works harder getting it right"

David Jennings, aka "Big Jolly"

"I appreciate the fact that you obviously try to see both sides of an issue, regardless of which side you end up supporting."

Kim Vickers,Texas Commission on Law Enforcement Officer Standards and EducationGrits for Breakfast "has probably broken more criminal justice stories than any TX reporter, but stays under the radar. Fascinating guy."

Maurice Chammah,The Marshall Project"unrestrained and uneducated"

John Bradley,Former Williamson County District Attorney, now former Attorney General of Palau

"our favorite blog"

- Texas District and County Attorneys Association Twitter feed"Scott Henson ... writes his terrific blog Grits for Breakfast from an outhouse in Texas."